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Why I beg to differ with Maraga

In Summary

•Laws including the constitution don’t exist in isolation and must be seen to aid proper functioning and governance of our society.

•If parliament were to be dissolved based on an erroneous misapplication of the constitution, especially during these covid19 times, coupled with severe restraints occasioned by poor fiscal health of our economy, then it can cause the country to be pushed to the edge of the precipice.

Chief Justice David Maraga.
Chief Justice David Maraga.
Image: FILE

This week Kenya has been treated to  high political drama whereby Chief Justice David Maraga was at it again. In a rather uncharacteristic manner, he issued an advisory opinion to the President, asking him to dissolve Parliament due to the failure by the latter to enact a legislation to give effect to the provisions of article 81(b) on electoral system to comply with the principle that not more than two thirds of the members of elective public bodies shall be of the same gender. This is only one of the 5 general principles that electoral systems need to comply with by dint of the relevant legislation.

To begin with, if you look at provisions of article 261 (5,6 & 7), and the 5th schedule, you will find that, there is clearly no specified timeline that applies to article 81 of the constitution. This is because the article simply delineates principles relating to elections, and whose application should effectively thread through legislations that parliament must enact as provided for in articles 82 such as the delimitation of boundaries 82(a), the nomination of candidates (party primaries) 82 (b), continuous registration of citizens as voters (82 (c), the conduct, regulation of both elections and referenda, including nomination of candidates (d) and the progressive registration of citizens in the diaspora (e).There is therefore no specific provision to implement this principle in isolation and it is thus a misapplication of the provisions of the constitution. What ought to happen is an audit of the aforementioned pieces of legislation to see to it that they comply with all of the 5 principles of an electoral system rather than only one of them only.

Nevertheless, parliament has made not less than 3 attempts at passing a two thirds bill, even when there isn’t any constitutional provision to have such a bill in the first place. Majority of parliamentarians has shot down the bills consistently, and this raises a fundamental question as to whether parliament can be compelled to vote in a certain manner. If this were to be the case, then it negates the very provision of article 38 which gives every citizen the right to freedom of political choice.  Further, there are several legislations currently before the house that speak to the principles under article 81 such as the party primaries bill, that seeks to regulate the conduct of the nomination of candidates for elections by political parties. This bill that I am privileged to have engineered and sponsored compels political parties to include marginalized groups of people including women and persons with disabilities in their structures. It will thus go a long way in effecting the principles of the constitution. Further, it should be born in mind that the only piece of legislation that is contemplated to increase the numbers of parliamentarians from marginalized groups is article 100 that calls for parliament to enact legislation to promote the representation in parliament of women, persons with disabilities, youth, ethnic and other minorities and marginalized communities within 5years. Such legislation must be all encompassing and thus cannot flag out only one category of the groups aforementioned to occasion a constitutional crisis of the magnitude that Maraga contemplates.

 
 

In this regard, a bill aptly named the special interests groups bill is before the senate for deliberation, although its contents are fairly woolly. This is because both articles 97 and 98 of the constitution cap the number of seats in both the national assembly and the senate, contrary to provisions of article 82 that give IEBC powers to delimit electoral units for the election of members of both the National and county assemblies. In addition, another bill on the 2 thirds gender principle is being sponsored by Senator Farhiya in the senate as well.

Maraga cited some 6 petitioners who moved the court and therefore him, for the dissolution of parliament. High court judge John Mativo ruled in favor of the petitioners and the case appealed albeit unsuccessfully. Though the provisions of art 261 (a) require that a declaratory order be made by the high court and be transmitted to parliament 261(b), this mandatory procedure wasn’t done since the chief justice declared that it was unnecessary since the orders were issued in the presence of the said parties in court at the time of the ruling.  Such actions establishes a very bad precedence in that court orders needn’t not be extracted from a ruling before being transmitted to a relevant party.

Laws including the constitution don’t exist in isolation and must be seen to aid proper functioning and governance of our society. If parliament were to be dissolved based on an erroneous misapplication of the constitution, especially during these covid19 times, coupled with severe restraints occasioned by poor fiscal health of our economy, then it can cause the country to be pushed to the edge of the precipice.

Maraga’s role in this matter was fairly administrative and it’s curious to note that he issued the advisory without having pronounced himself on submissions by the two speakers of parliament on the matter. This lends credence to the tendencies of the judiciary posturing as the most important arm of govt in comparison to the legislature and the judiciary.

Further, with first past the post electoral system, it’s impossible to force the electorate to vote in their representatives based on a particular gender. The constitution in article 90 provides for proportional representation by way of party lists in order to address the non-election of marginalized groups in parliament. As a result, the senate is only 1 senator shy of complying with the two thirds gender rule, something that Maraga never put into consideration.

Further, it’s important to be alive to the fact that even if parliament were to be dissolved, there is no guarantee that Kenyans will elect more women to the 13th parliament. In addition, such a parliament can still be dissolved, which is a recipe for anarchy. If the 12th parliament were to be dissolved, it would lead to a new 13th parliament thus interfering with the provisions of article 101 (1) which states that a member of parliament shall be elected every second Tuesday of the 5th year.

While it’s important to increase representation, it shouldn’t be done to inordinate levels that create a bloated parliament, even when such representation wouldn’t lead to better governance for the people.  It also leads to the creation of rather sinecure positions and tiers of parliamentarians whereby some are more equal than others, thus replicating an Orwellian society into the legislature, negating the very principle of equality of representation. 

 
 

Maraga’s advisory didn’t seem to consider the effect of it being ignored, and the impact this has with regards to the practice of the rule of law. Court declarations risk being seen as mere suggestions than compulsory orders, thus buttressing the culture of impunity that the law aims at curing in the first instance. Moreover, to confer powers to the executive on whether to dissolve parliament or not, based on an erroneous misapplication of the constitution is to weaken very institution of parliament itself as it can be used as some sort of sword of Damocles to emasculate and therefore diminish the independence of the legislature.

The chief justice it appears was motivated by his imminent retirement in January, and therefore wanted to have a go at what he would be remembered for, especially after having nullified the 2017 presidential elections. However, history will judge him harshly as someone who was quick to make headlines without following the due process of the law. His ruling on the nullification of the presidential election has already been rendered largely baseless none other than Njoki Ndung’u and Jactone Ojwang his supreme court colleagues, in their elaborate dissenting opinion.

Due to the material facts stated above, there is therefore no justification for the dissolution of parliament, and the president should take reasonable time to return the same advisory back to sender, especially after a new chief justice has been appointed.

When the destiny of a country is vested upon hands, you must exercise extreme caution and restraint, lest you plunge it into chaos while chasing a legacy for thyself!!